SHAHNAWAZ TARIQ, J.---Through the captioned Constitution petition, petitioner has invoked the constitutional jurisdiction of this Court under Article 199 of Constitution of Pakistan and agitated the judgment dated 07.03.2011, passed by the Court of learned Vth Additional District Judge, Karachi East, whereby F.R.A. No,100 of 2010, filed by petition was dismissed and order dated 18.03.2010, passed by II Rent Controller, Karachi East, in Rent Case No,211 of 2005, was maintained.
2. The necessary facts spelt out from the instant petition are that respondent No,1 purchased the demised premises i.e, Shop No,2, situated on Plot No,182/C, survey sheet No,35-P/1, block No,2, P.E.C.H.S, Karachi (hereinafter referred ' as "the premises"), from its previous owner namely Mst.
Shahnaz Begum and served notice upon the petitioner being tenant of the same under section 18 of Sindh Rented Premises Ordinance, 1979 (hereinafter referred as "the Ordinance, 1979"), which was replied by him through his counsel. Petitioner has been paying the monthly rent at the rate of Rs.800/- excluding other charges. It is further averred that respondent No,1 is carrying his business of dyeing and selling cloths in adjacent shop and requires the demised shop for his personal bona fide requirement which is most suitable for his needs while his shop is insufficient for his expanded business.
3. Petitioner filed written statement and denied the averments of rent application and stated that previous owner had never informed him about the sale and respondent No,1 had failed to provide him the ownership documents regarding the subject premises. Petitioner further denied the personal bona fide need of respondent No,1 for the demised premises and stated that he is 75 years old and not in position to expand his business but intends to sell out the demised shop as such he has claimed the demised premises in bad faith. Petitioner further stated that notice served by respondent No,1 was duly replied by him through his advocate and rent application is liable to be dismissed.
4. To substantiate his claim, respondent No,1 filed his affidavit-in-evidence and produced legal notice under section 18 of the Ordinance, 1979, reply sent by petitioner, another notice sent by him along with TCS receipt, CNIC and sale deed as Ex:A/1 to A/5 respectively. Respondent No,1 also filed affidavits-in-evidence of his witnesses namely Bashir Ahmed and Mahmood Ali as Ex:AW-2 and AW-3 respectively and were cross-examined by learned counsel for petitioner. In rebuttal, petitioner also filed his affidavit-in-evidence and produced 3 money order receipts, certified copy of plaint, legal notice, paid challan of MRC No,209 of 2004, KESC installation record, 17 photographs, copy of sale deed and copy of CNIC as Ex:0-1/A to O-1/Q respectively.
5. Learned Rent Controller while passing order dated 18.03.2010, framed the following points for determination:- "(i) Whether the applicant/ respondent No,) requires the demised premises in good faith for his personal bona fide use?
(ii) What should the order be?"
6. Learned Rent Controller after evaluating the evidence adduced by the parties and considering their arguments allowed rent application on the ground of personal bona fide need as emphasized by respondent No,1. Petitioner impugned the dismissal order and preferred first rent appeal which was also dismissed by learned Vth Additional District Judge, Karachi East, on the ground of personal bona fide need and directed the petitioner to handover the vacant peaceful possession of demised shop to respondent No,1 within 15 days.
7. Learned Counsel for petitioner at the very outset submitted that respondent No,1 has failed to prove the personal bona fide requirement, therefore, plea for personal need on the face of it, is based upon mala fide intention as he is already running his business of cloths for which the shop already in his possession is sufficient.
' He further contended that respondent No,1 wants to sell out or let out the demised premises on .Higher rent after receiving huge advance amount, therefore, concurrent findings may be set aside and instant petition may be allowed.
8. Learned Counsel for respondent No,1, inter alia, contended that respondent No,1 is already running business of cloths and due to expansion of his business, requires the demised premises for his personal bona fide requirements which have been confirmed by both the courts below.
9. From perusal of the material available on record and consideration of arguments advanced by counsel for the parties emanate that respondent No,1 is absolute owner of subject shop which was already let out to petitioner by the previous owner. It is significant to mention that respondent No,1 after purchasing the demised premises issued notice as envisaged under section 18 of the Ordinance, 1979, through his counsel which was duly received by petitioner and he replied through his advocate and controverted his claim of ownership and demanded ownership documents. The basic requirement of section 18 of the Ordinance, 1979, is transmission of intimation by the new owner through a notice to the tenant regarding the change of ownership. Indeed, petitioner has categorically admitted the receipt of such notice which was replied through his advocate and demanded ownership documents, while the tenant could not compel the landlord to supply ownership documents after purchasing the premises which does not fall within the scheme of section 18 of the Ordinance, 1979.
10. Undoubtedly, respondent No,1 is carrying his business of dyeing and selling cloths in adjacent shop independently and due to expansion of his business, requires the demised premises for his personal bona fide need. Respondent No,1 was cross-examined by learned counsel for petitioner at length but failed to shatter his statement on oath remained. It is well settled that sole testimony of the landlord is sufficient to establish his personal bona fide need for the premises, when his statement on oath was quite consistent with the averments made in ejectment application and neither his statement was shaken nor anything was brought in evidence to contradict his statement that would be sufficient for acceptance of the ejectment application. B While considering the need of landlord in good faith, the Rent Controller has to evaluate the genuineness and honest aspect of statement of the landlord and if the same is not tainted with malice, he should not hesitate to allow the rent application. In this regard, I am fortified by the dicta laid down in case of lqbal Book Depot and others v. Khatib Ahmed and 6 others (2001 SCMR 1197), wherein the honourable Supreme Court has observed that where the statement of landlord on oath was quite consistent with her averments made in the ejectment application and same had neither been shaken nor anything had been brought in evidence to contradict the statement, such statement on oath would be considered sufficient for the acceptance of the ejectment application.
11. The contention raised by the petitioner that respondent intends to sell out the demise premise, would not defeat the personal bona fide need of the landlord while the testimony and veracity of land lord was not shaken during the course of cross-examination. In case of Atiuddin v. Saleem Karim (1993 MLD 410), it was observed that mere desire of the landlord to sell his premises was not sufficient to refuse ejectment of tenant on the ground of bona fide personal use. It is also well established law that the owner and landlord of the demised premises could not be deprived of his right and interest to use his property in any manner suited to his requirements and any unreasonable restriction on the right to choose any of his property .For his need in good faith which would offend .His Constitutional rights. In case of Jahangir Rustam Kakalia through legal heirs v.
Messrs Hashwani Sales and Services (Pvt.) Ltd. (2002 SCMR 241), the honourable, Supreme Court has observed that respondents being owner and landlord of the demised premises could not be deprived of their right and interest to use their property in a manner more suited to their requirements. No unreasonable restrictions can be placed on the exercise of right by landlord which would offend the fundamental rights guaranteed under Article 23 of the Constitution.
12. In case of Mehdi Nasir Rizvi v. Muhammad Usman Siddiqui (2000 SCMR 1613), the honourable Supreme Court has observed as follows:- ' "No circumstance was available on record to show that desire of landlord to use his own property was tainted with malice or any evil design. Landlord's statement on oath had not been seriously challenged and same being consistent with the case pleaded but him must have been accepted on its face value and given weight."
13. In the case of- Mazhar Hussain Shah through L.Rs. v. Member Board of Revenue Punjab, Lahore and others (2006 SCMR 959), the honourable Supreme Court has observed that High Court has no jurisdiction to substitute its own findings for the findings recorded by the tribunals below. In the case of Malak Muhammad Hussain v. District Returning Officer and others (2008 SCMR 488), the honourable Supreme Court has observed that the concurrent findings of fact recorded by competent authorities having jurisdiction, are not to be interfered by the High Court in writ jurisdiction. Likewise, in the case of Hafiz Shafatullah v. Mst. Shamim Jehan and another (PLD 2004 Karachi 502), it was observed as under:- ' "By conferring only one right of appeal under section 21 of Sindh Rented Premises Ordinance, 1979, .Legislature in its wisdom seemed to have tried to shorten the span of litigation in rent cases and in such circumstances interference by High Court in exercise of its constitutional jurisdiction under Article 199 of the Constitution in judicial order passed by Tribunal of competent jurisdiction, merely on ground that another view of the matter was also possible, would not serve any other purpose, but would add to the misery of prolonged litigation for the parties and would defeat the spirit and object of statute."
14. For the facts, circumstances and identical case law referred supra, I am clear in my mind that respondent No,1 has succeeded to prove his personal bona fide requirement for the demised premises in good faith. Petitioner has failed to point out any illegality or infirmity or dis appreciation of evidence adduced by the parties by both the Courts below while passing the concurrent findings. It is also well settled that while scrutinizing the concurrent findings passed by both the Courts below, the High Court will not treat the Constitution petition in terms of second appeal.
Consequently, the impugned judgment dated 07.03.2011, passed in first rent appeal No,100 of 2010, by the Court of learned Vth Additional District Judge, Karachi East and ejectment order dated passed by learned Rent Controller in rent case No,211 of 2005, do not call for any interference, hence maintained and instant Constitutional petition stands dismissed. However, petitioner is allowed 30 days' time to vacate and handover peaceful possession of the demised shop to respondent No,1, failing which learned trial Court shall issue writ of possession without any notice to the petitioner/tenant with police aid, as the matter is pertaining to the year 2005.